IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

Appeal No. 118,474

STATE OF OKLAHOMA, ex rel., MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA,

Plaintiff/Appellee/Counter-Appellant vs.

JOHNSON & JOHNSON; JANSSEN PHARMACEUTICALS, INC.; ORTHO-McNEIL JANSSEN PHARMACEUTICALS, INC., n/k/a JANSSEN

PHARMACEUTICALS, INC.; JANSSEN PHARMACETUCIA, INC., n/k/a JANSSEN PHARMACEUTICALS, INC.,

Defendants/Appellants/Counter-Appellees, and

PURDUE PHARMA L.P.; PURDUE PHARMA, INC.; THE PURDUE FREDERICK COMPANY TEVA PHARMACEUTICALS USA, INC.;

CEPHALON, INC., ALLERGAN, PLC, f/k/a ACTAVIS PLC, f/k/a ACTAVIS, INC., f/k/a WATSON PHARMACEUTICALS, INC.; WATSON LABORATORIES, INC.; ACTAVIS LLC; and ACTAVIS PHARMA, INC., f/k/a WATSON PHARMA,

INC. Defendants.

BRIEF OF THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA AND THE AMERICAN TORT REFORM ASSOCIATION AS

AMICI CURIAE SUPPORTING APPELLANTS

Appeal from the District Court of Cleveland County, Oklahoma CJ-2017-816, The Honorable Thad Balkman

Brian D. Boone ALSTON & BIRD LLP 101 S. Tryon Street Charlotte, NC 28280 (704) 444-1000

Robert Vartabedian ALSTON & BIRD LLP 3700 Hulen Street Suite 150 Fort Worth, TX 76107 (214) 922-3550

D. Andrew Hatchett ALSTON & BIRD LLP 1201 West Peachtree St. Atlanta, GA 30309 (404) 881-7000

Daryl L. Joseffer Emily J. Kennedy U.S. CHAMBER

LITIGATION CENTER, INC.

1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337

Ethan J. Bond ALSTON & BIRD LLP 333 S. Hope Street Los Angeles, CA 90071 (213) 576-1170

H. Sherman Joyce Lauren Sheets Jarrell AMERICAN TORT REFORM

ASSOCIATION 1101 Connecticut Ave. N.W. Washington, D.C. 20036 (202) 682-1163

INDEX

AMICI CURIAE’S STATEMENT OF INTEREST 1 ........................................

ARGUMENT AND AUTHORITIES 3 ...............................................................I. The trial court jettisoned traditional limitations on nuisance law

and endorsed a public-nuisance theory that would virtually guarantee limitless liability for Oklahoma businesses. 4 ...........

A. Public nuisance has always been limited to conduct that interfered with the use of real property. 5 .........................

B. The decision below contravenes settled nuisance law and will wreak havoc on Oklahoma businesses. 11 .........................

II. The trial court unfairly and unconstitutionally pinned the claimed financial costs of the opioid crisis on a single defendant. 15 .......

CONCLUSION 19 ..............................................................................................Public nuisance law is not a panacea for every societal problem. The trial

court’s expansion of Oklahoma public nuisance law and application of joint-and-several liability promises devastating consequences for the Oklahoma business community. This Court should reverse the decision below and hold that the traditional limits on public-nuisance claims still apply in Oklahoma. 19..........................................

AMICi CURIAE’s statement of interest

The Chamber of Commerce of the United States of America (the Chamber)

and the American Tort Reform Association (ATRA) submit this amici brief in

accordance with Oklahoma Supreme Court Rule 1.12(b). 1

The Chamber is the world’s largest business federation. It represents

approximately 300,000 direct members and indirectly represents the interests of

more than three million companies and professional organizations of every size,

in every industry sector, and from every region in the country, including

Oklahoma. An important function of the Chamber is to represent the interests of

its members before Congress, the Executive Branch, and the courts. To that end,

the Chamber regularly files amicus curiae briefs in cases involving issues of

national concern to the business community.

ATRA is a broad-based coalition of businesses, corporations,

municipalities, associations, and professional firms that have pooled their

resources to promote reform of the civil justice system with the goal of ensuring

fairness, balance, and predictability in civil litigation. For more than three

decades, ATRA has filed amicus briefs in cases involving important liability

issues.

On September 28, 2020, the Chamber and ATRA filed an application to file an 1amici brief. On October 1, 2020, this Court granted the application.

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This is one of those cases. The Chamber and ATRA have an interest in

ensuring that, contrary to the decision below, Oklahoma’s tort system is

predictable and does not punish businesses for harms that they did not cause.

Since its inception, public nuisance has played a circumscribed role in

Oklahoma—indeed, American—jurisprudence. It originated as a property-based

tort used to remedy invasions of public lands or shared resources like highways

and waterways. The trial court ignored that history, transforming public

nuisance into a super tort that exposes Oklahoma businesses to unlimited

liability for a broad array of public issues that are far removed from traditional

public nuisances. Compounding its error, the trial court pinned 100 percent of

the State’s opioid-related costs on a single defendant that sold less than three

percent of all opioids statewide—a troubling extension of tort liability in its own

right.

The trial court’s expansion of public nuisance finds no basis in Oklahoma

law and promises trouble for businesses in the State. Armed with the decision

below, the State or its localities may use the public nuisance statute to sue a fast

food restaurant for an alleged obesity epidemic or to pressure an energy

company to cover the costs of climate change. Obesity and climate change, like

opioid abuse, are complicated public issues that demand policy-driven solutions

by elected officials. Instead of calling for a legislative solution to a legislative

problem, the trial court circumvented the democratic process and arrogated

policymaking power to the judicial branch so that it could create its own solution

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to the opioid crisis.

That transfer of legislative power to the judiciary—under the guise of

public-nuisance law—has already emboldened plaintiffs’ counsel. Just last

month, the Cherokee Nation sued companies in the e-cigarette industry for

public nuisance to recover money damages for alleged harms from the “vaping

epidemic.” The Cherokee Nation v. Juul Labs, Inc., No. CJ–20–114 (Sequoyah

Cty. Sept. 3, 2020). If the decision below stands, similar types of public-nuisance

lawsuits will multiply in Oklahoma.

The decision will also chill business activity throughout the state for fear

that any product linked to a perceived social problem may lead to astronomical

and disproportionate liability. It is not the judiciary’s role to create a new tort to

address social problems. That job belongs to the legislature, which can weigh

competing policy factors and study the possible consequences of expanding

traditional nuisance law.

ARGUMENT AND AUTHORITIES

Opioid addiction is a serious problem that demands serious policy-based

solutions. It calls for a legislative response, not a judicial one. Fent v. Okla.

Capitol Imp. Auth., 1999 OK 64, ¶ 4, 984 P.2d 200, 205 (“Respect for the

integrity of our tripartite scheme for distribution of governmental powers

commands that the judiciary abstain from intrusion into legislative

policymaking.”). What happened in the trial court represents the worst possible

outcome: a verdict that is judicial in form but legislative in substance.

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The trial court gave the State of Oklahoma license to blame a complex

health crisis on a single defendant (Janssen). That ruling was wrong as to

Janssen, but the fallout from the decision will extend beyond the pharmaceutical

industry and one wronged defendant.

Although the State purported to sue for “public nuisance” (50 O.S. §§ 1, 2),

in reality, it advocated a new species of super tort. That new super tort is not

limited to abating invasions of the public’s use of shared resources like highways

and waterways. It bears no resemblance to the public nuisances that courts have

recognized in the eight centuries since the claim emerged in the common law. It

is impervious to traditional legal hurdles like statutes of limitations and

causation principles. It is, in a word, unprecedented.

The new species of public nuisance will devour all of Oklahoma tort law

and, with it, who knows how many businesses. It is no answer to the opioid

crisis.

I. THE TRIAL COURT JETTISONED TRADITIONAL LIMITATIONS ON NUISANCE LAW AND ENDORSED A PUBLIC-NUISANCE THEORY THAT WOULD VIRTUALLY GUARANTEE LIMITLESS LIABILITY FOR OKLAHOMA BUSINESSES.

Before the decision below, traditional limits on public nuisance had

relegated the tort to a cameo role in the state’s legal system. The trial court

removed those traditional limits. If its decision stands, public nuisance will soon

play a starring role in tort cases throughout the State.

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A. Public nuisance has always been limited to conduct that interfered with the use of real property.

The public-nuisance claim articulated below is different in kind from the

public-nuisance tort that developed in the American legal system.

Originally a mechanism for the English Crown to abate conditions that

impeded royal property or public roads (Restatement (Second) of Torts § 821B

cmt. a (Am. Law Inst. 1979)) and waterways, public-nuisance law found its way

into American courts during the early days of the Republic. Donald G. Gifford,

Public Nuisance as a Mass Products Liability Tort, 71 U. Cin. L. Rev. 741, 793,

800 (2003). From its early appearances in American jurisprudence, the tort was

limited to conduct that interfered with a “public right”—that is, the right to

access shared resources like public roads and waterways. State v. Lead Indus.

Ass’n, 951 A.2d 428, 455 (R.I. 2008) (describing the “long-standing principle that

a public right is a right of the public to shared resources such as air, water, or

public rights of way”). It existed primarily as an injunctive remedy that allowed

the government to abate restrictions on those resources. Over time, the liability

theory evolved to allow individuals to press private claims for nuisance only if

their harm was “special” or different in kind than the injury to the public.

Gifford, 71 U. Cin. L. Rev. at 800.

Public nuisance remained snug in that box for hundreds of years. But in

the late twentieth century, private plaintiffs’ counsel formed alliances with state

and local governments and began trying to expand nuisance law. See Victor E.

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Schwartz et al., Can Governments Impose A New Tort Duty to Prevent External

Risks? The “No-Fault” Theories Behind Today’s High-Stakes Government

Recoupment Suits, 44 WAKE FOREST L. Rev. 923, 931 (2009); see also Gifford, 71

U. Cin. L. Rev. at 748–749. They canvassed the nation looking for courts willing

to move public nuisance beyond its historical limits.

Those early attempts failed. In the 1980s, plaintiffs pressed public-

nuisance claims (along with other types of claims) against manufacturers of

building materials containing asbestos. Although courts sustained asbestos

claims on alternative theories, “[a]ll of the courts that . . . considered the

issue . . . rejected nuisance as a theory of recovery.” Tioga Pub. Sch. Dist. #15 v.

U.S. Gypsum Co., 984 F.2d 915, 920 (8th Cir. 1993). In assessing whether

nuisance laws provided a remedy, many courts looked to the “limitations of

traditional common law nuisance doctrine,” including that, as a general matter,

nuisance claims “arise in the classic context of a landowner or other person in

control of property conducting an activity on his land in such a manner as to

interfere with the property rights of a neighbor.” Id. (emphasis added). Without

precedent supporting a broader application, courts refused to expand the

doctrine beyond its traditional foundations. Id. (“When one considers the fact

that the [nuisance] statute is over a hundred years old, the absence of analogous

cases supports an inference that the statute was neither intended nor has it

been understood to extend to cases such as [those involving asbestos products].”).

Other courts saw nuisance claims as a ploy to sidestep traditional legal

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requirements (like the statute of limitations and causation principles). Detroit

Bd. of Educ. v. Celotex Corp., 493 N.W.2d 513, 521 (Mich. Ct. App. 1992) (“[T]he

public would not be served by neutralizing the limitation period by labeling a

products liability claim as a nuisance claim.”). As the Eighth Circuit explained,

without those traditional limits, “[n]uisance . . . would become a monster that

would devour in one gulp the entire law of tort.” Tioga Pub. Sch., 984 F.2d at

921; see also Celotex Corp., 493 N.W.2d at 521 (holding that allowing a nuisance

claim in asbestos cases “would significantly expand, with unpredictable

consequences, the remedies already available to persons injured by products,

and not merely asbestos products.”).

Courts’ refusal to entertain public-nuisance claims did not stop plaintiffs

from trying. Plaintiffs next advanced public-nuisance theories against the

tobacco industry. The tobacco litigation eventually produced the largest

settlement in American history, but no appellate court issued an opinion

approving nuisance as a basis for recovery. On the contrary, the lone court to

publish an opinion before the settlement rejected the nuisance claim and

explained that it was “unwilling to accept the State’s invitation to expand a

claim for public nuisance beyond its grounding in real property.” Texas v. Am.

Tobacco Co., 14 Supp. 2d 956, 973 (E.D. Tex. 1997).

Undeterred, plaintiffs next pressed public-nuisance claims against lead

paint manufacturers. But every state supreme court to assess those claims

7

refused to expand nuisance liability beyond its historical roots. The New Jersey 2

Supreme Court, for instance, “examin[ed] the historical antecedents of public

nuisance and . . . trac[ed] its development through the centuries,” and concluded

that “permit[ing] these complaints to proceed . . . would stretch the concept of

public nuisance far beyond recognition and would create a new and entirely

unbounded tort antithetical to the meaning and inherent theoretical limitations

of the tort of public nuisance.” In re Lead Paint Litig., 924 A.2d 484, 494–95

(N.J. 2007); see id. (explaining that “essential to the concept of a public nuisance

tort . . . is the fact that it has historically been linked to the use of land by the

one creating the nuisance”). The Rhode Island Supreme Court likewise observed

that “[a] common feature of public nuisance is the occurrence of a dangerous

condition at a specific location,” and that all nuisance actions in Rhode Island

had “related to land.” Lead Indus. Ass’n, 951 A.2d at 452. The Rhode Island

Supreme Court refused to recognize “a new and entirely unbounded tort” that

ignored the “inherent theoretical limitations of the tort of public nuisance.” Id. at

455; see also City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 116

In City of Milwaukee v. NL Industries, 691 N.W.2d 888, 890 (Wis. Ct. App. 22004), an intermediate Wisconsin appellate court reversed a trial court’s dismissal of public nuisance claims against two lead paint manufacturers. The Wisconsin Supreme Court never weighed in on the propriety of the nuisance claim. City of Milwaukee v. NL Indus., 2005 WI 136 (Wis. 2005) (review dismissed); City of Milwaukee v. NL Indus., 2009 WI 34 (Wis. 2009) (review denied). Likewise, in another outlier decision, the California Court of Appeal ruled that lead paint manufacturers could be held liable for public nuisance. People v. ConAgra Grocery Prods. Co., 17 Cal. App. 5th 51 (Ct. App. 2017). The Supreme Court of California declined to hear the case. People v. Conagra Grocery Prods. Co., No. S246102, 2018 Cal. LEXIS 1277 (Cal. 2018).

8

(Mo. banc 2007) (affirming summary judgment in favor of lead paint

manufacturers on public-nuisance claim and rejecting the city’s attempt to

sidestep traditional causation standards under the guise of a “uniquely public”

and “widespread health hazard”).

The Supreme Court of Illinois reached the same conclusion when

municipal governments and private plaintiffs’ counsel teamed up against

gunmakers. After exploring the historical underpinnings of the “public right”

requirement—an essential element of a public-nuisance claim—the Court held

that “there is [no] public right to be free from the threat that some individuals

may use an otherwise legal product (be it a gun, liquor, a car, a cell phone, or

some other instrumentality) in a manner that may create a risk of harm to

another.” City of Chi. v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1116 (Ill. 2004).

Applying traditional public-nuisance principles, the Court held that product

manufacturers could not face liability for nuisance when others misused their

products. Id. 3

Oklahoma largely avoided those legal clashes over asbestos, tobacco, lead

paint, and firearms. That is perhaps because this Court has held time and again

that Oklahoma’s nuisance statute (50 O.S. § 1) codifies the common law (Nichols

Two courts tried to extend public nuisance to reach gunmakers (City of Gary v. 3Smith & Wesson, 801 N.E.2d 1222 (Ind. 2003); City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136 (Ohio 2002)), but Congress responded with a statute foreclosing the theory. See Sarah L. Swan, Plaintiff Cities, 71 Vand. L. Rev. 1227, 1236 (2018) (the 2005 Protection of Lawful Commerce in Arms Act “effectively foreclosed nearly all municipal civil suits against the gun industry”).

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v. Mid-Continent Pipe Line Co., 1996 OK 118, ¶ 8, 933 P.2d 272, 276) and covers

“a class of wrongs which arises from an unreasonable, unwarranted, or unlawful

use by a person or entity of property lawfully possessed.” Briscoe v. Harper Oil

Co., 1985 OK 43, ¶ 9, 702 P.2d 33, 36 (emphasis added). In Oklahoma, nuisance

claims “demand[] evidence of substantial interference with the use and

enjoyment of property.” Laubenstein v. Bode Tower, L.L.C., 2016 OK 118, ¶¶ 10–

12, 392 P.3d 706, 710. The only potential exception to that rule are those few

disturbances that, because of their nature, “at all times and under all

circumstances, irrespective of [their] location and environment,” constitute a

“nuisance per se.” McPherson v. First Presbyterian Church, 1926 OK 214, ¶ 11,

248 P. 561, 564. And even then, most nuisances per se are also connected to real

property. Examples include “[a] disorderly house, an obstruction of a highway,”

or other things “prohibited by public morals and law” (id.) like maintaining a

gambling establishment. Miller v. State, 1942 OK CR 43, 123 P.2d 699, 701. No

one contends that marketing FDA-approved prescription opioids—an

appropriate therapeutic treatment in various circumstances—constitutes a

nuisance per se.

* * *

Oklahoma law mirrors the law of its sister states that have concluded that

an “essential” component of every nuisance case “is the fact that it has

historically been linked to the use of land by the one creating the nuisance.” In re

Lead Paint Litig., 924 A.2d at 495. Amici have not located a single published

10

case in which an Oklahoma court recognized a public-nuisance claim involving

something other than real property or public spaces. Even Reaves v. Territory,

1903 OK 92, ¶ 14, 74 P. 951, 953—the lone case that the trial court cited (Final

J. After Non-Jury Trial (Final J.) at 23, ¶ 3)—involved real property. The

nuisance in that case—the “running [of] a disorderly and disreputable theatre”—

involved “lewd, lascivious or indecent shows and entertainments in a building.”

Reaves, 1903 OK 92, ¶ 1, 74 P. at 951 (emphasis added). The “noise and

boisterousness” persisted past midnight, six nights a week, “to the disturbance of

the neighbors.” Id. ¶ 8, 74 P. at 952.

B. The decision below contravenes settled nuisance law and will wreak havoc on Oklahoma businesses.

The decision below represents a clean break from Oklahoma nuisance law.

The trial court ignored nuisance law’s common-law, property-based foundation

and instead read Oklahoma’s nuisance statute in a manner that would eliminate

all other torts. According to the trial court, Janssen’s “false, misleading, and

dangerous marketing campaigns” fit the statutory definition of public nuisance

because the campaigns could be said to “annoy[], injure[], and endanger[] the

comfort, repose, health, and safety of others.” Final J. at 25, ¶ 8 (quoting 50 O.S.

§ 1). But as this Court has recognized, expansive statutory terms like “annoy,”

“injure,” and “endanger” must find their meaning in the common law

understanding of nuisance. Nichols, 1996 OK 118, ¶ 8, 933 P.2d at 276.

Otherwise, the statute could cover anything that the State might find

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“annoy[ing]” or “danger[ous].” Nothing suggests that the legislature intended the

statute to override common-law limiting principles or to expose businesses to

outsized monetary liability for conduct untethered to Oklahoma’s developed body

of nuisance law. See Lierly v. Tidewater Petroleum Corp., 2006 OK 47, ¶ 28 n.8,

139 P.3d 897, 905 n.8 (“The statutes and the common law are to be read together

as one harmonious whole.”).

Concern over runaway nuisance liability of that sort has led appellate

courts in other states to reject nuisance theories like those embraced below:

[G]iving a green light to a common-law public nuisance cause of action today will . . . likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities. All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born.

People v. Sturm, Ruger & Co., 309 A.D.2d 91, 96–97 (N.Y. App. Div. 2003).

Judges may have a righteous desire to do something about the opioid

crisis. But courts must resist the urge to accomplish that goal by redefining

public nuisance to swallow the whole of tort law. Tioga Pub. Sch., 984 F.2d at

921. The trial court brushed aside that concern, and now every business

operating in the State is in the crosshairs. Oklahoma energy companies may

soon face nuisance claims seeking to extract compensation for the effects of

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climate change. Or the State may sue smartphone manufacturers, alleging that 4

their devices created a generation of distracted drivers who drove up the need for

emergency services. Plaintiffs are already pressing similar claims throughout 5

the country. This Court should not invite that type of mischief in Oklahoma.

Instead, the Court should heed the warnings from state supreme courts

that have faced similar claims. If it doesn’t, Oklahoma will become ground zero

for every breed of public-nuisance claim imaginable. California is already

emerging as a cautionary tale. Following the trial court’s ruling here, Oklahoma 6

is not far behind: Those seeking to capitalize on the trial court’s decision have

already filed a public-nuisance claim against e-cigarette manufacturers to

recover “retrospective and prospective” costs allegedly caused by the “vaping

epidemic,” including costs for programs to “reduc[e] and prevent[] youth

addition.” The Cherokee Nation v. Juul Labs, Inc., No. CJ–20–114 (Sequoyah

Cty. Sept. 3, 2020); id. ¶ 232. And that is just the beginning. There is no telling

what other theories “creative mind[s]” will devise. Sturm, Ruger & Co., 309

A.D.2d at 96. This Court should confirm that nuisance law is not a universal

See Cty. of San Mateo v. Chevron Corp., 294 F. Supp. 3d 934, 937 (N.D. Cal. 42018) (remanding public-nuisance action against energy companies “seek[ing] the abatement of greenhouse gas emissions”).

See Modisette v. Apple Inc., 30 Cal. App. 5th 136, 141–42 (Ct. App. 2018).5

Lawyers emboldened by the California Court of Appeal’s decision allowing 6nuisance claims against lead paint manufacturers (see supra n.2) have since filed public-nuisance lawsuits against energy companies relating to climate change. City of Oakland v. BP PLC, 969 F.3d 895, 901–02 (9th Cir. 2020).

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salve for complex social problems. It was never meant to be.

The problems with the trial court’s decision run deeper still. Under the

regime established below, Oklahoma courts will also supplant the legislature as

the lawmaking arm in the state. Without the traditional limitations on liability,

public-nuisance law will empower a single judge or jury to set public policy for

the State. Public policy decisions about climate change, obesity, cell phones, and

opioids should not be left to the judicial branch:

[J]udges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order . . . [including] commission[ing] scientific studies or conven[ing] groups of experts for advice, or issu[ing] rules under notice-and-comment procedures inviting input by any interested person, or seek[ing] the counsel of regulators in the States where the defendants are located.

Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 428 (2011).

It is neither fair nor reasonable to expect one trial judge to make policy

choices governing all Oklahomans. That job belongs to the other branches of

government, which can balance the many competing policy factors and study the

consequences of remaking nuisance law.

Greenlighting a public-nuisance tort unbounded by traditional limitations

will wreak havoc on Oklahoma businesses. As reimagined below, public-nuisance

law offers businesses no way to predict when they may face liability in

Oklahoma. Whatever benefit the State realizes from a single nuisance judgment

will pale in comparison to the long-term economic effects of businesses fleeing

the State for fear of encountering the public-nuisance monster that the trial

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court unleashed.

II. THE TRIAL COURT UNFAIRLY AND UNCONSTITUTIONALLY PINNED THE CLAIMED FINANCIAL COSTS OF THE OPIOID CRISIS ON A SINGLE DEFENDANT.

Janssen sold less than three percent of the opioids distributed in

Oklahoma, but the trial court tagged Janssen with 100 percent of the statewide

abatement costs for the period in question. That disproportionate verdict violates

Oklahoma law and the U.S. Constitution.

The Oklahoma legislature has not barred courts from imposing joint-and-

several liability in actions by the State (23 OK § 15), but that does not mean that

the State is entitled to joint-and-several damages every time it wins at trial. No,

joint and several liability applies in only two limited circumstances: (1) when

multiple tortfeasors engaged in “concerted action” to cause the plaintiffs’ injury;

or (2) when multiple independent tortfeasors caused a single or indivisible

injury. Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 10, 920 P.2d 122, 126.

Neither applies here, and the trial court did not make factual findings to the

contrary.

Concerted action requires two tortfeasors to act with a “common purpose

or design” (id.), typically shown by “an agreement” or “conspiracy” to accomplish

the unlawful objective. Restatement (Second) Torts § 876 & cmts. a, b. The trial

court did not describe any evidence that would support a finding that Janssen

joined an opioid mismarketing conspiracy. The only other opioid manufacturers

even mentioned in the final judgment are Purdue and Teva, which both

15

purchased an active pharmaceutical ingredient (API) from a non-defendant

Johnson & Johnson subsidiary. Final J. at 8, ¶ 14. That commercial relationship

is not concerted action giving rise to joint-and-several liability. Cf. United States

v. Walker, 746 F.3d 300, 307 (7th Cir. 2014) (“To prove a conspiracy, the

government must prove more than a buyer-seller agreement.”).

Although the trial court made passing reference to Janssen’s “acting in

concert with others,” it never explained the concerted action’s scope or identified

the “others” that Janssen supposedly “act[ed] in concert with.” Final J. at 9 ¶ 17.

Those failings require reversal, for Janssen could never be jointly and severally

liable for alleged harms extending beyond the scope of any concerted action.

Kirkpatrick, 1996 OK 136, ¶ 10, 920 P.2d at 126. In other words, the trial court

tagged Janssen with all the harm caused by pill-mill operators, rogue doctors,

and other criminal actors, but it never found that Janssen acted in concert with

any of them. That is not—and cannot be—the law.

The indivisible-injury exception also does not apply. To show an

indivisible injury, the State needed to prove “a single injury which is not

apportionable among the joint tort-feasors.” Delaney v. Morris, 1944 OK 51, ¶ 7,

145 P.2d 936, 938. But the State offered no evidence that it suffered a single,

indivisible injury. Instead, the State tried to evade that requirement below by

labeling discrete instances of opioid misuse and abuse as an overarching “opioid

crisis.” Final J. at 29, ¶ 20. But there could never be an opioid crisis without

many individual instances of opioid abuse or misuse. Bundling a group of

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separate injuries together under one moniker—the “opioid crisis” or the “opioid

epidemic”—does not transform otherwise divisible harms into an indivisible one.

Plaintiffs have tried the same argument elsewhere and failed.

In Benjamin Moore, for instance, the City of St. Louis filed a public-

nuisance claim against six paint manufacturers to recover the costs of a city-

sponsored lead paint abatement program. 226 S.W.3d at 112–13. The city argued

that each defendant caused the abatement costs because each had substantially

contributed to a public “widespread health hazard” through “community wide

marketing and sales of lead paint.” Id. at 115–16. The Supreme Court of

Missouri saw through the ruse. It recognized that the city was seeking damages

for multiple distinct harms and placed the burden on the city to “connect a[]

specific defendant to a[] specific abatement project.” Id. at 113. According to the

Court, individual abatement projects remained individual even if there were

many of them:

Although the city characterizes its suit as one for an injury to the public health and suggests that it is for this injury that it is suing, this is not the case. The damages it seeks are in the nature of a private tort action for the costs the city allegedly incurred abating and remediating lead paint in certain, albeit numerous, properties.

Id. at 116. A contrary rule “risk[ed] exposing the[] defendants to liability greater

than their responsibility and may [have] allow[ed] the actual wrongdoer to

escape liability entirely.” Id. at 116.

The Benjamin Moore Court’s fears were realized below. The trial court

made a conclusory finding that “[t]he public nuisance is the State’s opioid crisis

17

and [Janssen was] a direct and proximate cause of it” (Final J. at 29, ¶ 20), but it

did not recognize that the “opioid crisis” label comprises multiple claimed

injuries. When, as here, a plaintiff (like the State) sues to recover for multiple

distinct harms, Oklahoma law requires the plaintiff to prove which “injuries are

attributable to” the alleged tortfeasor (Janssen). Johnson v. Ford Motor Co.,

2002 OK 24, ¶ 13, 45 P.3d 86, 91. But the State never offered that proof, and the

trial court never required it.

By holding the State to a lower burden, the trial court exposed Janssen “to

liability [far] greater than [its] responsibility.” Benjamin Moore, 226 S.W.3d at

116. That is not just a concern under Oklahoma law. It is a matter of due

process. “The Due Process Clause of the Fourteenth Amendment prohibits the

imposition of grossly excessive or arbitrary punishments on a tortfeasor.” State

Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). “Elementary

notions of fairness enshrined in our constitutional jurisprudence dictate that a

person receive fair notice not only of the conduct that will subject him to

punishment, but also of the severity of the penalty that a State may impose.”

BMW of N. Am. v. Gore, 517 U.S. 559, 574 (1996). The trial court’s judgment

makes a hash of those constitutional protections. No Oklahoma or federal

statute or precedent put Janssen on notice that participating in the prescription

opioid marketplace on a small scale would leave it solely responsible for the

alleged costs of remediating a statewide crisis.

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Causation requirements “limit a person’s responsibility [to] the

consequences of that person’s own acts.” Holmes v. Sec. Inv’r Prot. Corp., 503

U.S. 258, 268 (1992). Our justice system depends on that basic notion of fairness.

There is nothing just or fair about punishing one company for harms resulting

from many other factors. The trial court’s misapplication of joint-and-several

liability demands reversal.

CONCLUSION Public nuisance law is not a panacea for every societal problem. The trial

court’s expansion of Oklahoma public nuisance law and application of joint-and-

several liability promises devastating consequences for the Oklahoma business

community. This Court should reverse the decision below and hold that the

traditional limits on public-nuisance claims still apply in Oklahoma.

Respectfully Submitted,

By: _____________________________ Robert Vartabedian, OBA # 33101

ALSTON & BIRD LLP 3700 Hulen Street, Suite 150 Fort Worth, Texas 76107 (214) 922-3550 rob.vartabedian@alston.com

Brian D. Boone ALSTON & BIRD LLP 101 S. Tryon Street, Suite 4000 Charlotte, NC 28280 (704) 444-1000 brian.boone@alston.com

D. Andrew Hatchett ALSTON & BIRD LLP 1201 West Peachtree Street Atlanta, GA 30309

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(404) 881-7000 andrew.hatchett@alston.com

Ethan J. Bond ALSTON & BIRD LLP 333 S. Hope Street, Suite 1600 Los Angeles, CA 90071 (213) 576-1170 ethan.bond@alston.com

Attorneys for the Chamber of Commerce of the United States of America and the American Tort Reform Association

Daryl L. Joseffer (Of counsel) Emily J. Kennedy (Of counsel) U.S. CHAMBER LITIGATION CENTER, INC. 1615 H Street, N.W. Washington, D.C. 20062 (202) 463-5337

Attorneys for the Chamber of Commerce of the United States of America

H. Sherman Joyce (Of counsel) Lauren Sheets Jarrell (Of counsel) AMERICAN TORT REFORM ASSOCIATION 1101 Connecticut Avenue N.W. Washington, D.C. 20036 (202) 682-1163

Attorneys for the American Tort Reform Association

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this filing was mailed on

this 19th day of October, 2020 by depositing it in the U.S. Mail, postage prepaid

and/or by electronic mail to the following:

______________________________ Robert Vartabedian

Michael Burrage Reggie Whitten WHITTEN BURRAGE 512 N. Broadway Avenue, Suite 300 Oklahoma City, OK 73102

Mike Hunter Abby Dillsaver Ethan Shaner 313 N.E. 21st Street Oklahoma City, OK 73105

Bradley E. Beckworth Lisa Baldwin Nathan B. Hall NIX PATTERSON, LLP 512 N. Broadway Avenue, Suite 200 Oklahoma City, OK 73102

Benjamin H. Odom John H. Sparks Michael W. Ridgeway ODOM, SPARKS & JONES PLLC HiPoint Office Building 2500 McGee Drive Ste. 140 Norman, OK 73072

Larry D. Ottaway Amy Sherry Fischer Andrew M. Bowman FOLIART, HUFF, OTTAWAY & BOTTOM 201 Robert S. Kerr Avenue, 12th Floor Oklahoma City, OK 73102

Stephen D. Brody David K. Roberts O’MELVENY & MYERS LLP 1625 Eye Street NW Washington, DC 20006

Charles C. Lifland Sabrina H. Strong O’MELVENY & MYERS LLP 400 S. Hope Street Los Angeles, CA 90071

Andrew W. Lester SPENCER FANE LLP 9400 North Broadway Ext., Ste. 600 Oklahoma City, OK 73114

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AMICi CURIAE’s statement of interestARGUMENT AND AUTHORITIESThe trial court jettisoned traditional limitations on nuisance law and endorsed a public-nuisance theory that would virtually guarantee limitless liability for Oklahoma businesses.Public nuisance has always been limited to conduct that interfered with the use of real property.The decision below contravenes settled nuisance law and will wreak havoc on Oklahoma businesses.The trial court unfairly and unconstitutionally pinned the claimed financial costs of the opioid crisis on a single defendant.CONCLUSIONPublic nuisance law is not a panacea for every societal problem. The trial court’s expansion of Oklahoma public nuisance law and application of joint-and-several liability promises devastating consequences for the Oklahoma business community. This Court should reverse the decision below and hold that the traditional limits on public-nuisance claims still apply in Oklahoma.